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Reciprocity :

(e) It is stated that even though Indian lawyers are allowed to practice in U.K. and U.S.A., the same is subject to enormous conditions and restrictions and subject to passing of further tests conducted in the respective countries. As such, it is not reciprocity in the real sense, as permitted under Section 47 of the Advocates Act. It is stated that since the law degree conferred by any University outside the Territory of India has not been recognised by the Bar Council of India, nor the Bar Council of India has framed any rules and regulations under Section 42(2) of the Advocates Act in this regard, until such time, there is absolutely no scope for any foreign lawyer or foreign law firm to practice the profession of law in India. It is stated that the Advocates Act not only regulates the practice of advocates in courts alone, but it also regulates the practice of legal profession in various other forms such as giving legal opinion, drafting, chamber work, documentation, arbitration, mergers, take-overs, acquisitions, incorporations and so on and so forth. But, in spite of the restrictions, respondents 9 to 40 are carrying on their practice in utter disregard to the provisions of the Advocates Act and the relevant rules and regulations framed in this connection.

22. It is interesting to note that in that case, the Bar Council of India as well as the Bar Council of Maharashtra & Goa had adopted the arguments advanced on behalf of the writ petitioner. The Union of India had submitted that there was no proposal back then to allow foreign lawyers to practice Indian law in Indian Courts and that the Government was still in the process of consulting all the stake holders, and any decision would be taken only after due consultations with all concerned. However, it was stated on behalf of the Government that for the purposes of drafting legal documents or giving legal opinion on aspects of foreign or international law, one need not be on the roll of the Bar Council, given the fact that the Act incorporates penal provisions only in respect of persons illegally practising in judicial forums in India, while it does not provide any penal provision for breaches committed by persons practising in non-litigious matters, which goes to show that persons practising in non-litigious matters are not governed by the provisions of the Act.

40. In other words, the challenge before the Bombay High Court was to the permission granted by the Reserve Bank of India to foreign law firms to establish their liaison offices in India under Section 29 of FERA, 1973, and assuming such permission was valid, whether these foreign law firms could carry on their liaison activities in India only on being enrolled as advocates under the Advocates Act, 1961. There, a distinction was sought to be made between a person who is said to be practising in non-litigious matters when he represents to be an expert in the field of law and renders legal assistance to another person by drafting documents, advising clients, giving opinions etc., as opposed to a person who is said to be practising in litigious matters when he renders legal assistance by acting, appearing and pleading on behalf of another person before a judicial forum. The question raised in that case was, whether a person who wants to practise in non-litigious matters should have been enrolled as an advocate under the Act. The case of the petitioner therein was that the Advocates Act is a complete code for regulating the practice of law in India and since the expression to practice the profession of law includes both practise in litigious as well as non-litigious matters, foreign law firms could not have carried on practise in non-litigious matters without being enrolled as advocates under the Act. It was contended that the right to practice the profession of law cannot be confined to physical appearances in judicial forums, but it necessarily includes giving legal advice to a client, drafting and providing any other form of legal assistance.

41. The first question to be considered herein is, what were the liaison activities carried on by the foreign law firms in India ' In the affidavit in reply, these foreign law firms have stated that they have opened the liaison offices in India mainly to act as a coordination and communications channel between the head office / branch offices and its clients in and outside India. Since the Head Office and the branch offices of the foreign law firms are engaged in providing various legal services to their clients carrying on wide range of businesses all over the world, the liaison activity carried on in India, namely, to act as a coordination and communication channel would obviously be relating to providing legal services to the clients. The respondent No. 12 has further claimed in its affidavit in reply that their liaison activity inter alia included providing "office support services for lawyers of those offices working in India on India related matters" and also included drafting documents, reviewing and providing comments on documents, conducting negotiations and advising clients on international standards and customary practice relating to the client's transaction etc. It is contended by the respondent No. 12 to 14 that they never had and has no intention to practise the profession of law in India. Thus, from the affidavit in reply, it is evident that the liaison activities were nothing but practising the profession of law in non litigious matters.